The Advocate: Of Magistrates, Corruption And Incompetence

By Onikepo Braithwaite

About six weeks ago, we were all shocked when we heard of the invasion of the residence of Honourable Justice Mary Peter-Odili, JSC by some ‘unlawful’ law enforcement agents’, including Police and Military personnel, using a spurious search warrant as the authority for their illegal act.

Recently, the Chief Justice of Nigeria, Hon. Justice Ibrahim Tanko Muhammad, had cause to call out Judges on the issue of courts of concurrent/coordinate jurisdiction giving conflicting orders on the same cases, with the same parties and same subject-matter. The next set of judicial officers that the searchlight should be shone upon, are the Magistrates who seem to be forming the bad habit of issuing unlawful search warrants, which are not issued in accordance with the provisions of the law.

Sections 143-157 of the Administration of Criminal Justice Act 2015 (ACJA) (which is applicable in Abuja and domesticated in Lagos and other States), provides for Search Warrants generally. I will use two scenarios, that of Hon. Justice Mary Peter-Odili, JSC (the JSC) and that of an incident that occurred recently at a Hotel (X Hotel) to illustrate my points, vis-à-vis the issuance of unlawful search warrants. In both scenarios, the search warrants should not have been issued.

X Hotel
Last week, someone called me in a panic, to say that a team of people from the Audio Visual Rights Society of Nigeria (AVRS)(a collective management organisation for audio-visual works), including armed Police, had come to execute a search warrant on their business premises, which happens to be a hotel. The first thought that crossed my mind when I heard AVRS, was the WIPO Beijing Treaty of Audio Visual Performances of 2012, ratified by Nigeria in 2017, but which I believe is yet to be domesticated, and therefore, inapplicable in Nigeria.

There is a copyright levy that the AVRS seeks to collect on copyright materials, which has not yet been implemented by the Federal Government. However, I wondered what the connection of copyright levy would be with a hotel that simply has cable tv purchased from a company, for the private use of its guests in its hotel rooms. X Hotel did not reproduce the creative works of anyone. I asked what the offence was, and they sent me a copy of a demand notice for a copyright fee from the AVRS; Section 15 (1)(f) &(g) of the Copyright Act (CA), was cited therein. They said the hotel has decoders, and that without a licence from AVRS for any performance, communications to the public, or broadcast of cinematograph films or audio-visual works, it was an infringement of copyright.

This country has become so lawless, more so because any agency or organisation can just walk into your house or place of business, and disturb or arrest you for nothing. When did having decoders in hotel rooms for the private viewing of guests, become a public broadcast or copyright infringement? Surely, if it was even a genuine infringement, this would be a matter between the cable tv company and the AVRS, and not the purchasers of decoders who do not even make the choices of the programmes which are featured on the various cable tv channels.

Anyway, Section 16 of the CA provides for action for infringement of copyright, and nowhere does it mention criminal proceedings to recover unpaid copyright fees, even if the demand is legitimate. It is a civil matter; the reliefs available are damages and injunctions, to be obtained from the Federal High Court. So, where does the need for a warrant of search, used in criminal investigations, arise? Section 28 of the CA provides for the infringement of a performer’s right, while Section 30 thereof provides for criminal liability in that regard. The said Section 28 is however, inapplicable to X Hotel, as they did not record or broadcast anything to the public, nor did they perform anything for public viewing; furthermore, Section 28 of the CA was not mentioned in AVRS’s demand notice.

The JSC
In the case of the JSC, the deponent of the General Form of Affidavit reporting ‘Illegal Activities’ in some houses in Abuja and its environs to the Economic and Financial Crimes Commission (EFCC) – one of the documents that formed the basis of the complaint that resulted in the issuance of the search warrant levied on the JSC, firstly, had two different names listed on it – Aliyu Umar Ibrahim and Danjuma Ibrahim! So, who was the Deponent? Aliyu or Danjuma? Possibly the person whose photo appeared on the face of the document? Though the Deponent, Aliyu Umar Ibrahim resides in Niger State, in Paragraph 2 of the Affidavit, Danjuma Ibrahim (who may be Aliyu Umar Ibrahim) claimed to be convinced that Illegal Activities were going on in some houses in Abuja.

There is no offence known to law called ‘Illegal Activities’. Section 36(8) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution) clearly provides that a person shall not be charged for an offence unknown to law. It therefore follows, that a person cannot be investigated or arrested for an offence unknown to law. And, though an affidavit and a search warrant are not criminal charges, they should have been more specific about the illegal activities being carried on, where and by whom.

Secondly, the first port of call for criminal suspects is the Police, and not the EFCC. The EFCC is for financial crimes. If the Deponent could use a vague meaningless term like ‘illegal activities’, how then did he conclude that it was financial crimes that he was convinced were being committed, and should be channeled to the EFCC/Joint Panel Recovery of the Ministry of Justice?! Thirdly, even if the name of the specific suspects were unknown, the occupants of a particular residence(s) should have been used. I therefore, submit that that affidavit was too vague to hold up in any court of law. It fell short of the standards and information that should be included in such an affidavit, to support an application for a search warrant.

Again, one CSP Lawrence Ajodo attached to the Joint Panel Recovery (see Section 143 of ACJA), then used this vague affidavit as the basis for his application to the Magistrate Court to obtain a search warrant for his investigation. The General Form of Affidavit he subsequently deposed to, included as the perpetrator of illegal activities, an address, not a person(s).
The Form 9 Warrant to Search clearly states thus:
“WHEREAS as complaint has been made before me of the commission (or suspected commission) of the offence of ………..(State the offence concisely with the place)……”.

This makes it quite plain, that the offence for which the search warrant is being issued, must be stated concisely; and “Illegal Activities suspected to be prone to crime at No. 9 Imo Street, Maitama, Abuja”, is an offence unknown to law, and therefore, does not constitute an offence under our laws, and to make matters worse, the address was not that of the JSC who resides at No. 7, Imo Rivers Street, Maitama, Abuja.

Section 144 of ACJA permits a court or Justice of the Peace, if satisfied that there are reasonable grounds based on the conditions set out in Section 144(a)-(c), to issue a search warrant. I submit that, no such grounds existed; and that though Section 146(2) of the CA permits the court that issued a search warrant to cancel it, the Chief Magistrate’s subsequent order revoking the search warrant, was simply an afterthought, possibly backdated to the day the JSC’s house was invaded, to try to escape blame after the incident blew up. Claiming that there was misrepresentation to the court leading to the issuance of the search warrant, is a very weak excuse that cannot avail the Magistrate of a defence.

The demand by the aforementioned Form 9, that the offence must be named and facts stated concisely on the search warrant was not fulfilled, because the affidavits of Aliyu/Danjuma Ibrahim and CSP Ajodo offered no such information; and therefore, on that basis alone, on the fact that there was actually no offence alleged to have been committed, since there is no offence known as ‘illegal activities’, the Chief Magistrate had no business issuing a warrant of search ab initio.

Ditto for the Magistrate who issued a warrant of search on X Hotel, in what if it was even a legitimate case, was nothing more than a civil matter. When I asked that the search warrant be photographed and forwarded to me, I was informed that the Executors of the warrant had only allowed them to look at it fleetingly, instead of availing them with the document. This again sounded extremely fishy to me, and made it obvious that the Executors were aware that their mission was unlawful. Again, the Magistrate who issued the warrant of search on X Hotel, even if the letter of demand written by AVRS was provided, should have seen that demand for copyright fee for infringement is a civil matter, and should not have issued the search warrant. Are these Magistrates even familiar with the law?

Conclusion
The 30th Anniversary celebration of my Law School Class of 1991, which took place in Abuja on Friday, started off with a lecture delivered by the Vice President of Nigeria, Professor Yemi Osinbajo, SAN, who said: “Corruption within the judicial system is becoming a major embarrassment….. A few dishonest Lawyers and Judges, are enough to discredit the system. We need to call out members of our profession”. I concur; these two incidents with the Magistrates and the unlawful search warrants they issued, is yet another embarrassment within our judicial system.

Is it that some of our judicial officers are compromised, and simply do the bidding of their benefactors, no matter how wrong? Or is that some of our judicial officers, who are supposed to be Ministers in the Temple of Justice, charged with the mandate of meting out justice, are not even well acquainted with the law? Either scenario is unacceptable.